EXHIBIT 10.2

 

SECOND AMENDMENT TO GUARANTY AGREEMENT

 

THIS SECOND AMENDMENT TO GUARANTY AGREEMENT (this “Second Amendment”), dated as of June 11, 2014, is entered into among the parties listed on the signature pages hereof as Guarantors (collectively, the “Guarantors”), and BANK OF AMERICA, N.A. (the “Guarantied Party”, and collectively with any Affiliates thereof, the “Guarantied Parties”).

 

BACKGROUND

 

A.                                    The Guarantors and the Guarantied Party are parties to that certain Guaranty Agreement, dated as of March 1, 2013, as amended by that certain First Amendment to Guaranty Agreement, dated as of February 7, 2014 (said Guaranty Agreement, as amended, the “Guaranty Agreement”).  The terms defined in the Guaranty Agreement and not otherwise defined herein shall be used herein as defined in the Guaranty Agreement.

 

B.                                    The parties to the Guaranty Agreement desire to make certain amendments to the Guaranty Agreement.

 

C.                                    The Guarantied Party hereby agrees to amend the Guaranty Agreement, subject to the terms and conditions set forth herein.

 

NOW, THEREFORE, in consideration of the covenants, conditions and agreements hereafter set forth, and for other good and valuable consideration, the receipt and adequacy of which are all hereby acknowledged, the Guarantors and the Guarantied Party covenant and agree as follows:

 

1.                                      AMENDMENTS.

 

(a)                                 Section 1 of the Guaranty Agreement is hereby amended on and as of the Fourth Amendment Effective Date by adding the following defined terms thereto to read as follows:

 

“Buyer” has the meaning specified in the Fourth Amendment.

 

“Healthy Directions Purchase Agreement” has the meaning specified in the Fourth Amendment.

 

“Fourth Amendment” means that certain Fourth Amendment to Credit Agreement, dated as of June 11, 2014, among HOT-L.P., Limited, the Lenders and the Guarantied Party, as Administrative Agent.

 

“Fourth Amendment Parties” has the meaning specified in the Fourth Amendment.

 

“Lenders” has the meaning ascribed thereto in the Fourth Amendment.

 

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“Fourth Amendment Effective Date” has the meaning specified in the Fourth Amendment.

 

(b)                                 Section 8(b) of the Guaranty Agreement is hereby amended on and as of the Fourth Amendment Effective Date by (i) deleting “and” at the end of clause (12), (ii) deleting the period at the end of clause (13) and adding “; and” in lieu thereof, and (iii) adding the following new clause (14) at the end thereof to read as follows:

 

(14)                          subject to satisfaction of the conditions precedent in Section 5 of the Fourth Amendment, Investments constituting the acquisition by the Buyer of all of the Equity Interests of Healthy Directions in accordance with the Healthy Directions Purchase Agreement, provided if such acquisition results in a Domestic Subsidiary being acquired having a net worth at the time of such acquisitions of more than $1,000,000 (or within ten Business Days after any such Domestic Subsidiary thereafter attains a net worth of more than $1,000,000), such Subsidiary shall, within five Business Days after such acquisition execute and deliver to the Purchaser (x) a supplement to this Guaranty, (y) incumbency certificates, Organization Documents and documents evidencing due organization, valid existence, good standing and qualification to do business, and (z) a favorable opinion of counsel to such Person, in form, content and scope satisfactory to the Purchaser.

 

(c)                                  The definition of “Credit Facility” set forth in Section 1 of the Guaranty Agreement is hereby amended to read as follows:

 

“Credit Facility” means that certain credit facility governed by that certain Credit Agreement, dated December 10, 2010, among the parties thereto, including HOT-L.P., as the borrower thereunder, as amended, modified, supplemented or restated from time to time.

 

(d)                                 Section (f)(4) of the Guaranty Agreement is hereby amended on and as of the date of the Fourth Amendment Borrowing to read as follows:

 

(4)                                 provided after giving effect thereto on a pro forma basis the Leverage Ratio is not greater than 2.75 to 1.00, Limited may declare or pay cash Dividends to its stockholders and make Treasury Stock Purchases; provided, however, nothing in this clause (4) shall prohibit or restrict Treasury Stock Purchases made pursuant to Limited’s employee stock option repurchase programs; and

 

(e)                                  Section (k)(3) of the Guaranty Agreement is hereby amended on and as of the date of the Fourth Amendment Borrowing to read as follows:

 

(3)                                 Leverage Ratio.  Permit the Leverage Ratio at any time during any period of four fiscal quarters of Limited to be greater than 3.25 to 1.00.

 

2.                                      REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT.  By its execution and delivery hereof, each of the Guarantors represents and warrants that, as of the Fourth Amendment Effective Date:

 

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(a)                                 the representations and warranties contained in the Guaranty Agreement and the other Loan Documents are true and correct on and as of the date hereof as made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct on such earlier date;

 

(b)                                 no event has occurred and is continuing which constitutes a Default or an Event of Default;

 

(c)                                  (i) each Guarantor has full power and authority to execute and deliver this Second Amendment, (ii) this Second Amendment has been duly executed and delivered by the Guarantors, and (iii) this Second Amendment and the Guaranty Agreement, as amended hereby, constitute the legal, valid and binding obligations of the Guarantors, as the case may be, enforceable in accordance with their respective terms, except as enforceability may be limited by applicable Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as rights to indemnity may be limited by federal or state securities laws;

 

(d)                                 neither the execution, delivery and performance of this Second Amendment or the Guaranty Agreement, as amended hereby, nor the consummation of any transactions contemplated herein or therein, will conflict with any Law or Organization Documents of any of the Guarantors, or any indenture, agreement or other instrument to which the Guarantors or any of their respective property is subject; and

 

(e)                                  no authorization, approval, consent, or other action by, notice to, or filing with, any Governmental Authority or other Person not previously obtained is required for the execution, delivery or performance by any of the Guarantors of this Second Amendment.

 

3.                                      CONDITIONS TO EFFECTIVENESS.  This Second Amendment shall be effective upon satisfaction or completion of the following:

 

(a)                                 the Guarantied Party shall have received counterparts of this Second Amendment executed by each of the Guarantors and acknowledged by the Borrower;

 

(b)                                 the representations and warranties set forth in Section 2 above shall be true and correct;

 

(c)                                  the Fourth Amendment Effective Date shall have occurred; and

 

(d)                                 the Guarantied Party shall have received, in form and substance satisfactory to the Guarantied Party and its counsel, such other documents, certificates and instruments as the Guarantied Party shall reasonably require.

 

4.                                      REFERENCE TO THE GUARANTY AGREEMENT.

 

(a)                                 Upon the effectiveness of this Second Amendment, each reference in the Guaranty Agreement to “this Agreement”, “hereunder”, or words of like import shall mean and be a reference to the Guaranty Agreement, as affected and amended hereby.

 

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(b)                                 The Guaranty Agreement, as amended by the amendments referred to above, shall remain in full force and effect and is hereby ratified and confirmed.

 

5.                                      COSTS, EXPENSES AND TAXES.  The Guarantors agree to pay on demand all reasonable costs and expenses of the Guarantied Party in connection with the preparation, reproduction, execution and delivery of this Second Amendment and the other instruments and documents to be delivered hereunder (including the reasonable fees and out-of-pocket expenses of counsel for the Guarantied Party with respect thereto).

 

6.                                      BORROWER’S ACKNOWLEDGMENT.  By signing below, the Borrower (a) acknowledges, consents and agrees to the execution, delivery and performance by the Guarantors of this Second Amendment, (b) acknowledges and agrees that its obligations in respect of the Guaranty Agreement (i) are not released, diminished, waived, modified, impaired or affected in any manner by this Second Amendment or any of the provisions contemplated herein, (c) ratifies and confirms its obligations under the Guaranty Agreement, and (d) acknowledges and agrees that it has no claims or offsets against, or defenses or counterclaims to, its obligations under the Loan Agreement.

 

7.                                      EXECUTION IN COUNTERPARTS.  This Second Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which when taken together shall constitute but one and the same instrument.  For purposes of this Second Amendment, a counterpart hereof (or signature page thereto) signed and transmitted by any Person party hereto to the Guarantied Party (or its counsel) by facsimile machine, telecopier or electronic mail is to be treated as an original.  The signature of such Person thereon, for purposes hereof, is to be considered as an original signature, and the counterpart (or signature page thereto) so transmitted is to be considered to have the same binding effect as an original signature on an original document.

 

8.                                      GOVERNING LAW; BINDING EFFECT.  This Second Amendment shall be governed by and construed in accordance with the laws of the State of Texas applicable to agreements made and to be performed entirely within such state, provided that each party shall retain all rights arising under federal law, and shall be binding upon the parties hereto and their respective successors and assigns.

 

9.                                      HEADINGS.  Section headings in this Second Amendment are included herein for convenience of reference only and shall not constitute a part of this Second Amendment for any other purpose.

 

10.                               ENTIRE AGREEMENT.  THE GUARANTY AGREEMENT, AS AMENDED BY THIS SECOND AMENDMENT, AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT

 

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ORAL AGREEMENTS BETWEEN THE PARTIES.  THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.

 

REMAINDER OF PAGE LEFT INTENTIONALLY BLANK

 

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IN WITNESS WHEREOF, this Second Amendment is executed as of the date first set forth above.

 

	
 
    	
GUARANTORS:
    
	
 
    	
 
    
	
 
    	
HELEN   OF TROY L.P.,
    
	
 
    	
a   Texas limited partnership
    
	
 
    	
 
    
	
 
    	
By:
    	
HELEN   OF TROY NEVADA CORPORATION,
    
	
 
    	
 
    	
a   Nevada corporation, General Partner
    
	
 
    	
 
    	
 
    
	
 
    	
HELEN   OF TROY LIMITED,
    
	
 
    	
a   Barbados corporation
    
	
 
    	
 
    
	
 
    	
HOT   NEVADA, INC.,
    
	
 
    	
a   Nevada corporation
    
	
 
    	
 
    
	
 
    	
HELEN   OF TROY NEVADA CORPORATION,
    
	
 
    	
a   Nevada corporation
    
	
 
    	
 
    
	
 
    	
HELEN   OF TROY TEXAS CORPORATION,
    
	
 
    	
a   Texas corporation
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
IDELLE   LABS LTD.,
    
	
 
    	
a   Texas limited partnership
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
HELEN   OF TROY NEVADA CORPORATION,
    
	
 
    	
 
    	
a   Nevada corporation, General Partner
    
	
 
    	
 
    	
 
    
	
 
    	
OXO   INTERNATIONAL LTD.,
    
	
 
    	
a   Texas limited partnership
    
	
 
    	
 
    
	
 
    	
By:
    	
HELEN   OF TROY NEVADA CORPORATION,
    
	
 
    	
 
    	
a   Nevada corporation, General Partner
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
PUR   WATER PURIFICATION PRODUCTS, INC.,
    
	
 
    	
a   Nevada corporation
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Brian Grass
    
	
 
    	
 
    	
Brian   Grass
    
	
 
    	
 
    	
Title   for all: Chief Financial Officer
    


 

Signature Page to Second Amendment to Guaranty Agreement

 











 

	
 
    	
HELEN   OF TROY MACAO COMMERCIAL 
   OFFSHORE LIMITED,
    
	
 
    	
a   Macau corporation
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Vincent D. Carson
    
	
 
    	
 
    	
Vincent   D. Carson
    
	
 
    	
 
    	
Director
    
	
 
    	
 
    	
 
    
	
 
    	
KAZ, INC.,
    
	
 
    	
a   New York corporation
    
	
 
    	
 
    	
 
    
	
 
    	
KAZ   CANADA, INC.,
    
	
 
    	
a   Massachusetts corporation
    
	
 
    	
 
    	
 
    
	
 
    	
KAZ   USA, INC.,
    
	
 
    	
a   Massachusetts corporation
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Brian Grass
    
	
 
    	
 
    	
Brian   Grass
    
	
 
    	
 
    	
Title   for all: Chief Financial Officer
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
HELEN   OF TROY LIMITED,
    
	
 
    	
a   Bermuda company
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Brian Grass
    
	
 
    	
 
    	
Brian   Grass
    
	
 
    	
 
    	
Chief   Financial Officer
    


 

Signature Page to Second Amendment to Guaranty Agreement

 











 

	
 
    	
GUARANTIED   PARTY:
    
	
 
    	
 
    	
 
    
	
 
    	
BANK   OF AMERICA, N.A., as Guarantied Party
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Julie Castano
    
	
 
    	
 
    	
Name:   Julie Castano
    
	
 
    	
 
    	
Title:   SVP
    


 

Signature Page to Second Amendment to Guaranty Agreement